To qualify for a Technical Publications Writer TN, an individual must possess either a bachelor’s degree or a post-secondary diploma and three years experience. Despite the opinion of some immigration officers, a specific degree is not required for a TN (except for the Hotel Manager category). Cronin Memo. The rule is that “[t]he degree should be in the field or in a closely related field.”
In support of the client’s application, we prepared an Attorney Brief outlining the regulations and policy regarding the degree requirements under the TN visa category. We argued that the client qualified for the Technical Writer TN category based on her bachelor’s degree in Government, which was sufficiently related for the position offered. We supported this argument with reference to the Occupational Outlook Handbook, which states that “employers [of writers] look for a broad liberal arts background,” and industry materials, which stated that an individual with a bachelor’s degree in Political Science (i.e. Government) can qualify for a Technical Publications Writer position.
Client submitted her application at a land border port-of-entry. CBP approved the application for the full three-year period requested.
]]>This time I was held for approximately 2 hours when they searched their computer system for info about me. Eventually my I-94 was removed from the passport and a new I-94 given. I asked what I did wrong and what I should present at the border next time and received no clear answer. Could you give some comments?
Reply: I see these types of problems frequently with TN workers who re-enter at U.S. international airports. Immigration inspectors at U.S. international airports do not handle NAFTA TN applications very often, and as result, are not familiar with processing TNs. I suspect the officer was asking for Form I-797, which is the approval notice an individual receives if she has filed for a TN by mail with USCIS. As you obtained your TN at the border, you are only issued an I-94 card and not an I-797.
For TN workers who must re-enter at a U.S. international airport, I generally recommend that they have the following items on hand to overcome an inspecting officer’s concerns about their immigration status: (1) the original I-94; (2) I-94 fee payment receipt (from border); (3) original I-797 approval notice (if available); (4) copy of TN application materials; and (5) an updated employer support letter confirming continued employment with the employer.
]]>An individual can qualify for a Computer Systems Analyst TN in two ways: (1) possession of a bachelor’s degree; or (2) possession of a post-secondary diploma and three years experience. See 8 C.F.R. § 214.6. Here the client possessed a post-secondary diploma in Business Administration and over twenty years experience in the field. The major issue in this case was the client’s diploma, and whether the inspecting officer would consider it acceptable for the Computer Systems Analyst TN category. Many inspectors believe that an applicant must posses a specific degree in the field to qualify for a TN - especially for Computer Systems Analysts (many inspectors insist a degree in Computer Science is required).
This strict interpretation is contrary to U.S. immigration’s own policy and to U.S. Department of Labor standards. According to a legacy INS memo, only the Hotel Manager TN category requires a specific degree. Otherwise, a related degree or diploma may be acceptable. See Cronin Memo. Furthermore, the U.S. Department of Labor’s Occupational Outlook Handbook unequivocally states that a specific degree in Computer Science is not required for a Computer Systems Analyst position. Individuals may qualify for a Computer Systems Analyst based on other degrees as well. For example, the OOH states that “[f]or jobs in a technical or scientific environment, employers often seek applicants who have at least a bachelor’s degree in a technical field, such as computer science, information science, applied mathematics, engineering, or the physical sciences.”
The OOH also states that individuals who have non-computer science degrees, but who have completed courses in computer science or related subjects, and have practical experience can qualify as a Computer Systems Analyst: “people who have degrees in other majors may find employment as systems analysts if they also have technical skills. Courses in computer science or related subjects combined with practical experience can qualify people for some jobs in the occupation.” The OOH also states that “graduates with non-computer-science degrees who have had courses in computer programming, systems analysis, and other information technology subjects” can qualify for a position as a Computer Systems Analyst.”
The client in this case had taken several computer related courses during his diploma program. Based on this coursework and his substantial industry experience, we believed the client could qualify for a TN as a Computer Systems Analyst based on the INS Memo and the OOH. We provided the client with an Attorney Cover Letter outlining this argument along with supporting documentation to present along with his TN application to the border official. After reviewing the client’s transcripts and confirming his computer related coursework, the officer issued the TN without complication.
]]>In order to enter the U.S. a foreign citizen must present a passport that is valid for a minimum of six months from the expiration date of the contemplated period of stay. INA § 212 (a)(7)(B)(i); 8 C.F.R. § 214.1(a)(3)(i).
The law previously exempted Canadian citizens from presenting a passport in order to enter the U.S. 8 C.F.R. § 212.1(a)(1). With the full implementation of the Western Hemisphere Travel Initiative on June 1, 2009, citizens of Canada are now generally required to present a passport for entry to the U.S.
This has resulted in a processing change for TN border applications. In the past, Canadian citizens presented a passport only to document that the applicant met the citizenship requirements for NAFTA. The passport was not required as an entry document. As result of the WHTI, CBP now requires Canadian citizens to present a passport that is valid for the entire period of the proposed stay.*Otherwise, CBP may limit the applicant’s TN I-94 to the expiration date of the individual’s passport.
Different passport rules apply for petitions requesting an extension of or change to TN visa status. Foreign citizens applying for an extension of status (EOS) or change of status (COS) must have a passport that is valid at the time of filing the petition. 8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire length of time requested in the EOS or COS. The regulations only require that the individual “agree to maintain the validity of his or her passport.” Id. If the passport will expire prior to the proposed period of stay, the individual must eventually obtain a new passport. USCIS should not limit the petition’s validity period to the expiration date of the passport.
*Citizens of Canada still enjoy a partial exemption from the requirements of INA § 212 (a)(7)(B)(i). Canadian citizens only need to have a passport valid for the proposed period of stay. They do not need to have a passport valid for six months beyond their period of admission. 9 FAM § 41.104 n.2.1.
]]>Reply: The new three-year TN rule does not specifically exclude any TN occupational categories from eligibility for the full three-year period of stay. However, TN occupational categories that U.S. immigration officials subject to a heightened scrutiny – particularly the Management Consultant category – present a more difficult case for a multi-year TN approval.
Pursuant to the legacy INS’ NAFTA Handbook, when a sponsoring company is not an actual consulting firm, a company cannot engage a Management Consultant as a salaried employee unless the individual fills a “supernumerary temporary position.” According to the government’s interpretation of this rule, Management Consultants are individuals hired by a company to help solve a particular short-term management problem. They cannot engage in any managerial or day-to-day job duties themselves. They can only provide advice and make recommendations. They cannot actively implement any of their suggestions or recommendations. The advice and suggestions must be implemented by others at the company.
When an individual has obtained several Management Consultant TNs with the same company and involving the same consulting duties, immigration officials suspect the individual is improperly filling a regular, salaried position at the company or engaging in impermissible managerial duties. As result, companies may have difficulty requesting a multi-year Management Consultant TN and may not fully benefit from the recent TN rule allowing two and three-year year periods of TN status.
Companies may overcome the government’s apprehension over successive Management Consultant TNs by first engaging the applicant as an independent contractor, and not a salaried employee. Sponsors should then also explain the continued need for a Management Consultant by describing a different managerial problem or new business challenge that needs to be addressed by the Management Consultant’s expertise. It may also be beneficial to address these concerns in detail for each year of TN status requested.
Again, while the recent three-year TN rule does not specifically exclude any TN occupational categories from eligibility for the full three-year period of stay, in practice immigration officials have been hesitant to issue multi-year TNs to Management Consultants. To overcome the government’s reservations, sponsoring companies will need to significantly describe and document the protracted need for the Management Consultant’s services.
]]>Unlike the TN visa category, which does not require possession of a license prior to entry, the H-1B visa regulations generally require the beneficiary to have the requisite license prior to the approval of an H-1B petition and entry to the U.S. 8 C.F.R. § 214.2 (h) (4) (v).
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